[Ip-health] US Chamber of Commerce in Times of India today - India is TRIPS compliant, our response is who cares?

leena menghaney leenamenghaney at gmail.com
Thu Apr 6 21:44:10 PDT 2017

*‘India is TRIPS compliant, our response is who cares? This government has
not been as ambitious as we hoped’*

*April 7, Times of India carried it prominently on its Edit page*

India’s legal framework to protect intellectual property rights (IPR) has
for long been a source of friction in its engagement with the United
States. In the backdrop of an aggressive approach by the new US
administration in protecting its commercial interests, Patrick Kilbride,
executive director of International Intellectual Property at US Chamber of
Commerce’s Global Intellectual Property Center, talked to Sanjiv Shankaran
about IPR issue:

*What is the Donald Trump administration’s view on IPR?*

We don’t know yet what the administration’s IPR policy will look like, but
statements we have heard from senior administration officials is that IPR
theft is a high priority for them. The use of the word theft is a signal of
how they approach these issues which is through an enforcement lens. You
may see utilisation of dispute settlement mechanisms, in some cases you may
see more unilateral steps. Again we don’t know what tools this
administration will gravitate to yet, but maybe they will take a more
creative approach from what we have seen from past administrations.

*What steps?*

There has been speculation that administration has had room under 301
statute (a statute under which the US has unilaterally created a priority
watch list) to take steps to address chronic trade problems. We may see use
of International Trade Commission’s Section 337 provision on imported goods
that infringe intellectual property rights. Or maybe it will be a harder
line on negotiations.

*Two years ago you were upbeat about Modi government’s approach to IPR. How
has the experience been?*

This government has not been as ambitious as we hoped. On one hand we saw
positive elements in the National IPR policy that was announced. On the
other hand there is a deep-set sort of default to TRIPS (Trade Related
Intellectual Property Rights) compliance; a very defensive posture combined
with India’s advocacy in multilateral organisations such as WTO for
broadened flexibilities which we think have a counter effect to the
positive steps India appears to be taking domestically. They send a signal
to innovative industries that things like compulsory licences would be more
routine, more discretionary in future.

*Doesn’t National IPR policy change anything in terms of messaging?*

It doesn’t change any of the underlying rules that act to restrict
application of IP rights. For instance, in terms of patentability of
computer implemented inventions or for second use medical innovations it
doesn’t promise any changes. In terms of orientation of government towards
compulsory licensing it doesn’t signal any changes. In terms of improving
availability of criminal or civil remedies for infringement whether of
patents or copyrights it doesn’t opt for any changes. The only statement in
that area of statute is that we are already TRIPS compliant. That doesn’t
send a good message to innovative industries. On the other hand, in terms
of recognition of positive contribution of intellectual property towards
investment in the innovative spaces it sends a different message. That’s
why i say it comes across as ambivalent.

 *Haven’t all Indian governments been clear that IPR benchmark here will be

When the government tells us India is TRIPS compliant, our response is who
cares? We think TRIPS by itself is insufficient to launch India into the
group of countries that are leading the global knowledge economy. It is
insufficient to drive large scale innovation and investment in India. It
would take two times TRIPS to put India into that tier of countries.

*Since US was the main driving force for Trans Pacific Partnership, have we
reached a plateau for multilateral efforts to enhance level of IPR?*

Trade agreements take so long to negotiate. If we are going to count on
those vehicles we could wait a long time for substantial improvement. We
are looking at how we can encourage unilateral adoption of strong IP rights
so that it is a sovereign policy choice and not a concession in a free
trade agreement. The case we are trying to make is that intellectual
property is not something you do for your trading partner in order to gain
access. It’s something that you invest in for the strength of your own
economy for the sake of domestic innovation. In many ways we would like to
get out of the trade agreement space and focus on countries acting
unilaterally to build their own legal infrastructure for innovation. We
want it to be organic.

*Have you been successful in persuading some countries?*

Malaysia has decided that they want to try and attract innovative
industries and they have themselves implemented some of the intellectual
property provisions of TPP even without the agreement entering into force.
Certain countries are looking at this very strategically and about how they
position themselves relative to competitors.

DISCLAIMER : Views expressed above are the author's own.

Leena Menghaney
Mobile: 9811365412

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